Showing papers in "University of Chicago Law Review in 2007"

Reforming Entrapment Doctrine in United States v. Hollingsworth

Abstract: Whenever I teach the entrapment defense, I pair the last Su preme Court case on the topic?Jacobson v United States1?with the Seventh Circuit's en banc decision in United States v Hollingsworth! Chief Judge Richard A. Posner wrote the panel opinion for the 2-1 majority in Hollingsworth3 and the en banc opinion for the 6-5 major ity, in each case holding that the two defendants were entrapped as a matter of law. Chief Judge Posner interpreted Jacobson?itself a 5-4 decision?as making an unannounced but fundamental change in en trapment law that benefited the Hollingsworth defendants. Under his view, the Supreme Court redefined "predisposition" to include not only the mental element of willingness to commit an offense, but also a positional element of being functionally able to do so.4 Posner's opinions display his characteristic skill in interpretation, creatively finding space for the doctrinal change and using that space to bring, to my mind, greater rationality to entrapment doctrine. There are lively dissents written by Judges Coffey, Easterbrook, and Ripple.5 Since the Seventh Circuit's en banc decision, other circuits have strug gled with the issue but rarely resolved it;6 one imagines that the Su

What Good Is the Social Model of Disability

Abstract: A social model of disability relates a person’s disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model’s force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the model’s causation story. At the same time, a normative framework within which the social model is relevant may suggest not only policy goals but an institutional design. These points are illustrated by recent controversies involving genetic screening, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability

Abstract: One of the most challenging problems in legal scholarship is the measurement of attorney ability. Measuring attorney ability presents inherent challenges because the nonrandom pairing of attorney and client in most cases makes it difficult, if not impossible, to distinguish between attorney ability and case selection. Las Vegas felony case data, provided by the Clark County Office of the Public Defender in Nevada, offer a unique opportunity to compare attorney performance. The office assigns its incoming felony cases randomly among its pool of attorneys, thereby creating a natural experiment free from selection bias. We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year. While we find no statistical difference based on law school attended or gender, we find evidence that the public defender’s race correlates with sentence length, with Hispanic attorneys obtaining sentences that were up to 26 percent shorter on average than those obtained by black or white attorneys. We also find evidence suggesting that differences in sentencing may be driven partly by different plea bargaining behavior on the part of the public defenders.

Predicting Corporate Governance Risk: Evidence from the Directors' & Officers' Liability Insurance Market

Abstract: This Article examines how liability insurers transmit and transform the content of corporate and securities law. Directorsi & Officersi (D&O) liability insurers are the financiers of shareholder litigation in the American legal system, paying on behalf of the corporation and its directors and officers when shareholders sue. The ability of the law to deter corporate actors thus depends upon the insurance intermediary. How, then, do insurers transmit and transform the content of corporate and securities law in underwriting D&O coverage? In this Article, we report the results of an empirical study of the D&O underwriting process. Drawing upon in-depth interviews with underwriters, actuaries, brokers, lawyers, and corporate risk managers, we find that insurers seek to price D&O policies according to the risk posed by each prospective insured and that underwriters focus on corporate governance in assessing risk. Our findings have important implications for several open issues in corporate and securities law. First, individual risk rating may preserve the deterrence function of corporate and securities law by forcing worse-governed firms to pay higher D&O premiums than better-governed firms. Second, the importance of corporate governance in D&O underwriting provides evidence that the merits do matter in corporate and securities litigation. And, third, our findings suggest that what matters in corporate governance are ideep governancei variables such as iculturei and icharacter,i rather than the formal governance structures that are typically studied. In addition, by joining the theoretical insights of economic analysis to sociological research methods, this Article provides a model for a new form of corporate and securities law scholarship that is both theoretically informed and empirically grounded.

Discounting: A Review of the Basic Economics

Abstract: Environmental economics provides a good entry point to a discussion of discounting, as intertemporal issues play a particularly central role: the time scale of many environmental processes is radically longer than conventional economic time scales. Global warming and loss of biodiversity provide perfect illustrations. Global warming may have its main impacts on human societies one hundred or more years hence, and likewise the costs of loss of species diversity in terms of simplification of ecosystems and loss of genetic variability are likely to be felt most strongly by generations quite remote from us. This is not to say that there will be no short-run impacts from these phenomena. There will be, but they are likely to be dwarfed by consequences that will become apparent only over very long periods. So to assess and evaluate properly these changes we need to look relatively far into the future—possibly a century at least. More generally, environmental assets such as watersheds, species diversity, rangelands, marine ecosystems, and climate regimes are assets that are in principle very longlived. They have functioned as they do today for millennia, and if well managed will continue to do so equally far into the future. In this, they are rather different from the assets that humans construct and that we are used to valuing. These typically have life spans measured in years or decades. So to appreciate fully the contributions that environmental assets can make to human welfare we need a very long view. This does not sit easily with the economist’s standard practice of discounting the future at a real rate of at least 3 percent or 4 percent.

On Moral Progress: A Response to Richard Rorty

Abstract: Is there moral progress? I agree with Rorty against Posner that there clearly is1 We should probably abandon the nineteenth century expectation for a steady progress of humanity toward greater and greater overall moral achievement The wars of the twentieth century extinguished that teleological expectation, and the twenty-first, so far, gives us no reason to revive it There are, however, more modest notions of progress There is, for example, the view to which Kant seems inclined; that we understand morality better over time, and learn by slow degrees to avoid, or at least to blame and work against, some especially heinous types of moral error2 Anyone who is a feminist has to think that there is at least something to that view Certain forms of bad behavior can be exposed and criticized in a manner that makes it impossible to return to them, at least in the old way In Kant’s example, the ferment surrounding the French Revolution made it impossible to return to feudalism and monarchical absolutism in the old way, as something simply natural, sanctioned by nature’s laws, inevitable, and in no need of justification Now people still erect social hierarchies of class, ethnicity, and race—but they can’t get away with saying that this is just the way nature is Widespread awareness of the brutality of such arrangements

Jurisdictional Competition and the Evolution of the Common Law.

Abstract: This Article explores the role that jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees for each case. As a result, judges had an incentive to hear more cases. The central argument of this Article is that, since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs. Courts expanded their jurisdictions to give plaintiffs more choices; they made their procedures cheaper, swifter, and more effective; and they developed legal doctrines that made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraints, most importantly Parliament and Chancery. This Article tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition.

Rational Discounting for Regulatory Analysis

Abstract: This Article examines the economic basis for what is termed "rational discounting," which entails full recognition of policy effects over time and exponential discounting at a riskless rate of return. Policies often cannot be ranked unambiguously in terms of their present or future orientation. Both failure to discount and preferential intergenerational discounting generate inconsistencies and economic anomalies. Office of Management and Budget (OMB) discounting guidelines now stipulate more reasonable discount rates than earlier guidelines, but err in permitting open-ended preferential rates for intergenerational effects. This Article presents a methodology for monetizing the value of statistical life for people of different ages and at different points in time. Review of regulatory analyses indicates increased consistency of discounting practices. However, an examination of two policies with intergenerational stratospheric ozone regulation and nuclear waste storage at Yucca Mountain, reveals failures to adopt a rational discounting approach. The influence of behavioral anomalies such as hyperbolic discounting may make full recognition of intertemporal effects in benefit-cost analysis more consequential than the use ofpreferential discount rates. I. INTRODUCTION

Changing Name Changing: Framing Rules and the Future of Marital Names

Abstract: Introduction 763 I. The Nature of the Problem 767 A. The Trouble with Names 768 B. The Trouble with Marital Naming Choices 774 II. Current Social Defaults: Practices of Family Naming 785 A. What Spouses Do with Their Names 785 B. What Parents Do with Their Children’s Names 791 III. Social Alternatives: Crafting A Sustainable Egalitarian Convention ....793 A. Common Alternatives to the Mrs. His Name Convention .......794 B. A Promising Alternative: Biphenation 804 IV. Current Legal Defaults: State Procedures for Marital Names 809 A. Keeping: The Least Sticky Default (But Only for Women) .....812 B. The Process (Costs) for Various Marital Name Changes .........816

Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian

Abstract: How do you reconcile an opinion like Edmond v Goldsmith 1 with the anti-civil-libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency? 2 The book itself is self-consciously directed against a civil libertarian framework “The sharpest challenge to the approach that I am sketching,” Posner knowingly anticipates, “will come from civil libertarians,” by which he means those “adherents to the especially capacious view of civil liberties that is often advanced in litigation and lobbying by the American Civil Liberties Union” 3 In his book, Richard Posner argues in defense of the use of coercive interrogation techniques “up to and including torture”; 4 in support of the National Security Agency (NSA) program of warrantless electronic surveillance of American citizens; 5 in favor of criminally punishing the dissemination (including by the media) of classified material concerning national security; 6 and in defense of the constitutionality (though not yet the necessity) of prohibiting extremist speech 7 By the end of the book, Richard Posner advances a novel judicial doctrine of “national security necessity” that would essentially extend a form of qualified immunity “to national security officials who violate a constitutional right in good faith in compelling situations of necessity” as a better and simpler alternative to presidential pardons 8

Caring about the Distant Future: Why It Matters and What It Means

Abstract: A discount rate indicates how to compare future costs and benefits to current costs and benefits. Insofar as the discount rate is high, we are counting future costs and benefits for less. A zero discount rate, by definition, means that the future counts for as much as the present. My informal polling over the years suggests that many advocates of greater state spending—especially noneconomists—like the idea of a very low discount rate. Many of these individuals wish that our government would devote more resources to education, to infrastructure, and to improving the environment. They see a lower discount rate as supporting these policies. More generally, these individuals believe we are not caring enough about the future. Very low rates of discount therefore serve as a “left-wing” view in most cases. Similarly, support for market-based discount rates often comes from centrist or more “right-wing” views.1 In contrast, I see a stronger concern for the distant future as cutting across the current political spectrum. A greater orientation toward the future is likely to increase the desirability of policies favoring a market economy, economic growth, and technological innovation— all prerequisites for sustainable economic growth. Furthermore, some of the arguments for these choices may require a deep concern for the more distant future. For instance, strongly positive discount rates usually imply that we should grant considerable importance to the alleviation of immediate suffering. Market liberalizations, whatever longrun virtues they may have, sometimes increase immediate suffering. Market economies and market reforms look better the greater the weight we place on the relatively distant future. A free society is better today than a corrupt and totalitarian alternative. But one hundred

Legislative Rules Revisited

Abstract: The distinction between legislative rules and nonlegislative rules is one of the most confusing in administrative law.1 Yet, it is also criti cal for understanding not just when agencies must use procedural formality to issue policy judgments, but also the subsequent treatment of those judgments by courts.2 This Essay explores the legislative rule conundrum through the lens of Judge Richard A. Posner's opinion in Hoctor v United States Department of Agriculture.3 To describe the legislative rule debate is to conjure doctrinal phantoms, circular analytics, and fundamental disagreement even about correct vocabulary. Hoctor illustrates many of the fault lines in existing doctrine and suggests a novel if ultimately unsatisfying ap proach to legislative rules doctrine that turns on characterizing the form, content, and relationship between the new rule and existing law. This Essay suggests instead that much of the legislative rule doctrine might well be jettisoned, avoiding confusion and uncertainty about when agencies must use formal procedures to issue policy.

On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity

Abstract: There is an elaborate debate over the practice of “discounting” regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that, as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. Both sides frequently neglect a simple point: if regulators are interested in how people currently value risks that will not come to fruition for a significant time, they can use people’s current willingness to pay to reduce those risks. And if the question involves people’s willingness to pay in the future, what is being discounted is merely money, not regulatory benefits as such. No one seeks to discount health and life as such—only the money that might be used to reduce threats to these goods. If willingness to pay to reduce risk is the appropriate metric for allocating regulatory resources, discounting merely adjusts that metric to make expenditures comparable through time. To be sure, cost-benefit analysis with discounting can produce serious problems of intergenerational equity; but those problems, involving the obligations of the present to the future, require an independent analysis. Failing to discount will often hurt, rather than help, future generations, and solutions to the problem of intergenerational equity should not be conflated with the question of whether to discount.

Discounting Dollars, Discounting Lives: Intergenerational Distributive Justice and Efficiency

Abstract: The view that intergenerational distributive justice and efficiency should be treated separately is familiar, yet controversial. This article elaborates the often-implicit justifications for separate treatment and provides a more express statement of how and when such treatment is appropriate. Substantial attention is devoted to an approach that holds constant the intraand intergenerational distribution of well-being, which proves to be a valuable analytical device even for intergenerational policies that are not distribution neutral. Also explored are possible interrelationships between intergenerational distributive justice and efficiency, the choice of interest rate for discounting dollars, and how the present approach relates to those that would employ direct social weights to dollars at different points in time. Forthcoming, University of Chicago Law Review

Cost-Benefit Analysis without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms

Abstract: Is an accommodation “reasonable,” under the Americans with Disabilities Act, if and only if the benefits are roughly proportional to the costs? How should benefits and costs be assessed? Should courts asks about how much disabled employees are willing to pay to obtain the accommodation, or instead how much they would have to be paid not to have the accommodation? How should stigmatic or expressive harms be valued? This essay, written for a symposium on the work of Judge Richard A. Posner, engages these questions in a discussion of an important opinion in which Judge Posner denied accommodations involving the lowering of a sink in a kitchenette and a request for telecommuting. The problem with the analysis in that opinion is that it does not seriously analyze either costs or benefits. A general lesson is that while cost-benefit balancing can helpfully discipline unreliable intuitions about the effects of requested accommodations, it can also incorporate those intuitions. Another lesson is that stigmatic harms and daily humiliations deserve serious attention as part of the inquiry into which accommodations are reasonable, and that the removal of those harms and humiliations can create real benefits. Adequate cost-benefit analyses must attempt to measure and include those benefits. Richard Posner has been a colleague and a friend for over a quarter-century. Over the years, I have learned that there is one thing he isn’t: Sentimental. A celebration of his years on the bench inevitably invites not only sentimentality but also a lot of applause; and we should certainly pause for some. (A terrible secret: Those of us who know Posner well like him. Actually we like him a lot.) But for this particular judge, I think, the best * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. Thanks to Christine Jolls, with whom I taught the case discussed here on two occasions; I have learned a great deal from her emphasis on expressive harms in particular. Thanks too to Robert Hahn, Jolls, Elizabeth Emens, and Sarah Lawsky for valuable comments on a previous draft. 1 A small story: In my first year at the University of Chicago Law School, I was invited to a little dinner party at the house of Frank Easterbrook (not yet a federal judge). The party was dominated by George Stigler, a Nobel Prize winner-to-be and a major figure at the university at the time. Stigler asked me what I taught, and I responded that I taught Social Security and Welfare Law, at which point Stigler began to cast cheerful, contemptuous ridicule on the subject. In Stigler’s view, no one in America was poor, because even a little money ($7 a week, if memory serves) could go a very long way. This position seemed to me not only preposterous but also offensive, and I tried to respond; but Stigler was of course Stigler, and in addition to being a terrific debater, he wasn’t always a nice man. Seeing my distress, Posner came to the

Agencies Should Ignore Distant-Future Generations

Abstract: A theme of many of the papers is that we need to distinguish the notion of intertemporal equity on the one hand and intertemporal efficiency on the other hand. Intertemporal equity refers to the degree to which the current generation should weight the interests of future generations. Intertemporal egalitarianism, for example, holds that the interests of a person living in the future should receive the same weight as the interests of a person living today. Intertemporal efficiency refers to the means by which the current generation should implement the obligations imposed by intertemporal equity. The two distinct ideas are frequently confused in the legal literature; the confusion is embodied by the notion that discounting future costs and benefits entails a rejection of intertemporal egalitarianism. As Louis Kaplow, Dexter Samida and David Weisbach, and Cass Sunstein and Arden Rowell show, an intertemporal egalitarian should endorse discounting so that the choice among projects designed to benefit the future is not distorted—so that one does not choose a regulatory project that transfers wealth to the future less efficiently than saving does.1 Indeed, for the sake of argument, Samida and Weisbach assume intertemporal egalitarianism in the course of reaching their conclusion “that discounting by the opportunity cost of capital is generally appropriate and Pareto dominates any other decision procedure.”2 However, the actual discount rate used by regulatory agencies should almost certainly be higher than the opportunity cost of capital. The latter provides only the ethically appropriate floor for the actual discount rate that ought to be used by agencies. Indeed, beyond a few generations the effective discount rate should be infinity—that is, regu-

Disability and the Social Contract

Abstract: In Frontiers of Justice: Disability, Nationality, Species Membership (“Frontiers of Justice”), philosopher Martha Nussbaum demonstrates the power of her capabilities approach for political theory by proposing to bring three often-disregarded groups safely within the scope of justice. Like animals and economically underdeveloped nations, she contends, people with disabilities are excluded from traditional social contract theory. In its simplest (perhaps oversimplified) form, social contract theory requires recipients to reciprocate for social benefits received, for why would people freely enter into cooperative arrangements with one another if the scheme was not similarly advantageous for all?1 Specifically, why would productive people contract to cooperate with unproductive individuals whose inclusion in the cooperative scheme brings no additional resources to the common store? The implausibility of self-regarding productive people choosing nonproductive ones as cooperators propels the presumption that every party to the contract must have the ability to make real contributions to achieving mutual advantage for all the parties together (p 66). This is one of the many theoretical and practical commonplaces that Nussbaum challenges in her illuminating critique.

Valuing the Future: OMB's Refined Position

Abstract: Federal agencies are required by presidential executive order to prepare a regulatory impact assessment (RIA) in support of any economically significant regulatory action.' An important feature of the RIA is a benefit-cost analysis.2 Although benefit-cost considerations are not always decisive in regulatory decisionmaking, they are gradually becoming more important both in the United States and abroad.3 If the benefits and costs of a rule are projected to occur at different points in time, which is common, a discount rate is generally applied to future benefits or costs in order to convert them to present value. Until 2003, the position of the U.S. Office of Management and Budget (OMB) was that such analyses should generally employ a real (that is, inflation-adjusted) discount rate of 7 percent.4 OMB Circular A-4, published September 17, 2003, revisited this question.' Circular A-4 was developed through a multi-year process that included a collaboration of analysts at OMB and the Council of Economic Advisors, public comment, expert peer review, and formal interagency review. The result of that process was a refined OMB position on time-preference issues.

Paretian Intergenerational Discounting

Abstract: This paper argues that discounting costs and benefits of projects for the opportunity costs of capital Pareto dominates decision criteria that do not discount. It considers and rejects several objections to the Pareto dominance argument, including the problem of making compensating transfers for the costs and benefits of projects and whether taking opportunity costs into account is different than discounting. It also argues that discounting future costs and benefits of projects does not undervalue future generations.

Discounting, On Stilts

Abstract: This paper provides a critical overview of several articles presented at the Intergenerational Discounting and Intergenerational Equity Conference held at the University of Chicago Law School on April 27-28, 2006. First, it demonstrates that conventional normative justifications offered for the use of discounting future costs and benefits for policy analysis in the intergenerational context do not withstand scrutiny. Second, it observes that the compensatory transfers that are sometimes thought to sanitize the cost-benefit procedure in the intergenerational context are deeply problematic, both in their theoretical construction and in their practical adequacy for the tasks they are being deployed to accomplish. Third, it argues that although some analysts have been careful to acknowledge the need to address questions of intergenerational equity directly through other policy mechanisms, these analysts have understated the difficulty of limiting discounted cost-benefit analysis to its proper sphere of competence.

All the World's the Men's Room

Abstract: In August 2000, a panel of the Seventh Circuit Court of Appeals upheld the dismissal of Audrey Jo DeClue's complaint of hostile envi ronment sexual harassment against her employer, the Central Illinois Light Company, for whom DeClue had completed an apprenticeship as a lineman. The panel was unanimous in holding that most incidents of which DeClue complained, "including] a coworker's deliberately urinating on the floor near where the plaintiff was working, repeated shoving, pushing, and hitting her, sexually offensive touching, exposing her to pornographic magazines, and?the point she particularly em phasizes?failing to make adequate provision for restroom facilities for her" had occurred "before the 300-day limitations period" and hence were time-barred.1 With respect to "[t]he only significant act? omission would be more precise?of alleged sexual harassment that occurred during the limitations period[, ...] the electric company's continued failure to provide restroom facilities for the plaintiff, who was the only woman in the crew of linemen to which she was as signed?in fact the only woman lineman employed by the company,"2 dissenting Judge liana Rovner would have allowed DeClue to pursue her hostile environment claim. But, writing for himself and Judge Wil liam Bauer, Judge Richard Posner held that the "defendant's failure to respond to the plaintiff's request for civilized bathroom facilities can[not] be thought a form of sexual harassment."3 Because plaintiff had "insisted on litigating her case as a hostile-work-environment case throughout" and had not so much as mentioned the term "disparate

The Cost of Norms: Tax Effects of Tacit Understandings

Abstract: Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare enhancing. This Article looks at the less-appreciated darker side of social norms. It combines an analysis of modern sophisticated tax planning techniques with existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to those whose opportunity to take advantage of social norms is more limited or nonexistent. The resulting inefficiency and inequity is the social cost of social norms. Reducing this cost, however, turns out to be a challenging task. This Article introduces a tax-focused classification of social norms and singles out the type of norms that are particularly inefficient. Unfortunately, while reducing the use of these norms (or eliminating them altogether) would be welfare enhancing, it is unlikely to succeed in practice. Indiscriminately attacking all norms is administratively easier, but socially costly. This Article proposes a compromise between these two courses of action that is more administrable than the first approach and less costly than the second. It also offers a guide that will assist the government in identifying particularly inefficient norms.

Sex, Violence, and the First Amendment

Abstract: In American Amusement Machine Association v Kendrick,1 Judge Posner invalidated an Indianapolis ordinance prohibiting operators of video game parlors from allowing minors unaccompanied by a parent, guardian, or other custodian to play video games that are "harmful to minors." In enacting this ordinance, the Indianapolis City Council at tempted to build on the Supreme Court's 1968 decision in Ginsberg v New York,2 holding that government can constitutionally regulate ma terial that is obscene for minors.3 Under Ginsberg, Indianapolis could constitutionally forbid operators of video game parlors from allowing minors unaccompanied by a parent, guardian, or other custodian to play video games that are obscene for minors.4 The Indianapolis ordi nance attempted to extend the logic of Ginsberg to material that is violent, rather than sexual. Closely tracking the definition of what is obscene for minors, the ordinance restricted video games that contain graphic images of vio lence that visually depict "realistic serious injury to a human or hu man-like being where such serious injury includes amputation, decapi tation, dismemberment, bloodshed, mutilation, or disfiguration" and also appeal primarily to "minors' morbid interest in violence," are "patently offensive to prevailing standards in the adult community ...

The Case for Reviewing Debt/Equity Determinations for Abuse of Discretion

Abstract: For at least thirty-eight years, the circuit courts of appeals have been split over the proper standard of review for a trial court's distinc tion of debt from equity.1 Whether a financial disbursement counts as debt or equity is material to the tax treatment it receives. Underlying this split are two central disagreements. One is academic?whether the debt/equity distinction is ultimately a legal or factual determina tion. The other is practical?whether deferential or independent re view will strike the right balance between decisionmaking accuracy and costs. Courts commonly consider three options for standard of review: clearly erroneous, abuse of discretion, and de novo. But on this issue, the circuits are split four ways, with different circuits advocating for the three principal standards as well as a hybrid utilizing both clearly erroneous and de novo review. The inquiry is complex and dynamic, and clear resolution is needed.2 Courts of appeals have been resolving debt/equity cases for over fifty years. But the dust has not yet settled?just last year the Third Circuit formally adopted its position, joining the majority of circuits in classifying the question as factual and the review as for

Science and Morality: Pragmatic Reflections on Rorty's 'Pragmatism'

Abstract: "Pragmatism," says Richard Rorty, "puts natural science on all fours with politics and art. It is one more source of suggestions about what to do with our lives."' Some self-professed pragmatists, like the American philosopher W.V.O. Quine, would obviously deny this.2 I shall not engage in a proprietary dispute here about the label "pragmatism,"3 but I do want to present a kind of pragmatic challenge to the idea that we have reason to think "science [is] on all fours with politics and art." Let us start with a familiar distinction between questions of "theoretical reason" (questions about what we ought to believe) and questions of "practical reason" (questions about what we ought to do). Ethics, politics, and, on some views, art address what we ought to do ("what to do with our lives," as Rorty puts it); science, insofar as we credit its deliverances, tells us what we ought to believe. When Mendelian genetics supplied the causal mechanism explaining the truth of Darwin's theory of evolution by natural selection, it did not tell us "what to do with our lives." But when Herbert Spencer and other social Darwinists interpreted Darwin's theory metaphorically as describing patterns of wealth distribution in society, it did entail a practical conclusion: the socioeconomically "weak" ought to be allowed to perish, as they are not "fit" enough to survive in the marketplace. Unfortunately for the Social Darwinist apologists, for man-made inequities there was no genetic mechanism to support their story. Like Rorty,

Minors' Constitutional Right to Informational Privacy

Abstract: The contours of the constitutional right to privacy have eluded courts since the Supreme Court first announced this distinct right in Griswold v Connecticut.' Likely in a failed attempt to clear up this doctrine, the Court in Whalen v Roe2 declared that the right to privacy encompasses two separate interests: security of personal information and autonomy in making important decisions.3 While the Supreme Court has revisited the second strand-often deemed \"decisional privacy\"-many times since Whalen, it has reexamined the first strand, \"informational privacy,\" only once, and in the same year it decided Whalen. Yet in this case, Nixon v Administrator of General Services,' the Court did little to clarify the scope of informational privacy rights, leaving the courts of appeals to build a framework for evaluating informational privacy claims. Every circuit court but the D.C. Circuit recognizes Whalen as establishing a separate constitutional right to informational privacy. These courts have created a conceptually diverse but relatively stable framework for evaluating informational privacy claims. However, this framework was built on the informational privacy claims of adults. Recently, courts have been asked to assess similar claims brought by minors and have responded in two ways.7 The Third and Ninth Circuits have applied their informational privacy analysis to minors with

Deference, Delegation, and Immigration Law

Abstract: The history of immigration jurisprudence is a history of obsession with judicial deference. The foundational doctrine of constitutional immigration law?the "plenary power" doctrine?is centrally con cerned with such deference.1 Under the doctrine's earliest incarnation, the Supreme Court treated a challenge to a federal immigration policy excluding Chinese immigrants as nearly nonjusticiable, writing that the federal government's decisions about how to regulate immigration were "conclusive upon the judiciary."2 Even in the modern constitu tional era, the Supreme Court has invoked the plenary power to jus tify watered-down review of gender classifications in the immigration code.3 And some lower courts have suggested that the plenary power precludes any judicial scrutiny of immigration decisions affecting ar riving immigrants.4 This century-old doctrine has been augmented by developments in administrative law that often obligate judges to defer to agencies' factual and legal judgments. The Chevron doctrine is perhaps the best known strand of these developments. Under Chevron, courts must defer to reasonable agency interpretations of ambiguous statutory provisions, even if the court disagrees with those interpretations.5 Sis ter doctrines in administrative law counsel courts to defer to factual determinations by agencies as well.6